B-144407, MARCH 6, 1961, 40 COMP. GEN. 491

B-144407, MARCH 6, 1961, 40 COMP. GEN. 491

MILITARY PERSONNEL - GRATUITIES - REENLISTMENT BONUS - RECOUPMENT - UNSUITABILITY DISCHARGE - DISCHARGE CORRECTION RECOUPMENT OF UNEARNED REENLISTMENT BONUS PAYMENTS FROM MEMBERS OF THE UNIFORMED SERVICES WHO WERE GIVEN UNSUITABILITY DISCHARGES BECAUSE OF INAPTITUDE, INABILITY TO LEARN, AND CHARACTER AND BEHAVIOR DISORDERS AFFECTING INTELLIGENCE AND PERSONALITY PRIOR TO APRIL 14, 1960, WHEN THE REGULATIONS WERE CLARIFIED TO EXEMPT SUCH DISCHARGES FROM THE RECOUPMENT REQUIREMENT, WOULD BE TOO DOUBTFUL TO WARRANT FURTHER COLLECTION ACTION BY THE GENERAL ACCOUNTING OFFICE; THEREFORE, ADMINISTRATIVE COLLECTION ACTION NEED NOT BE PURSUED AND REFUND OF THE AMOUNT OF UNEARNED REENLISTMENT BONUS WITHHELD MAY BE MADE WHETHER OR NOT THE MEMBER HAS FILED A CLAIM THEREFOR. THE CHARGE OF AN UNDESIRABLE DISCHARGE TO A GENERAL OR HONORABLE DISCHARGE OF A MEMBER OF THE UNIFORMED SERVICES WHO WAS ORIGINALLY SEPARATED FROM THE SERVICE AS A RESULT OF MISCONDUCT DOES NOT AFFECT THE MEMBER'S LIABILITY FOR REFUND OF THE UNEARNED REENLISTMENT BONUS REQUIRED UNDER 37 U.S.C. 238 AND 239. THE MERE REFERENCE IN THE FINDINGS OF A DISCHARGE REVIEW BOARD UNDER 10 U.S.C. 1553 OR BY A CORRECTION OF RECORDS BOARD UNDER 10 U.S.C. 1552 TO A PARTICULAR AIR FORCE OR ARMY REGULATION AS THE BASIS ON WHICH A FORMER MEMBER OF THE UNIFORMED SERVICES SHOULD HAVE BEEN SEPARATED FROM ACTIVE SERVICE--- WHEN THE PARTICULAR REGULATION TO WHICH REFERENCE IS MADE DOES NOT EXCLUSIVELY PERTAIN TO INVOLUNTARY AND NONMISCONDUCT SEPARATIONS--- DOES NOT EFFECTIVELY RELIEVE SUCH MEMBER OF LIABILITY UNDER 37 U.S.C. 238 AND 239 TO REFUND THE UNEARNED REENLISTMENT BONUS UPON CHANGE OF CHARACTER OF DISCHARGE IF THE ACTUAL FACTS OF RECORD, REMAINING UNCHANGED, CLEARLY ESTABLISH THAT THE EARLY SEPARATION WAS IN FACT VOLUNTARY OR THE RESULT OF THE MEMBER'S OWN MISCONDUCT.

TO THE SECRETARY OF DEFENSE, MARCH 6, 1961:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 7, 1960, FROM THE FORMER ASSISTANT SECRETARY OF DEFENSE (1COMPTROLLER), CONCERNING RECOUPMENT OF REENLISTMENT BONUS IN CASES WHERE THE MEMBER VOLUNTARILY OR BECAUSE OF HIS OWN MISCONDUCT FAILS TO COMPLETE THE TERM OF ENLISTMENT OF WHICH THE BONUS WAS PAID.

IT WAS STATED IN OUR LETTER OF DECEMBER 17, 1959, B-140915, TO HIS FORMER SECRETARY OF DEFENSE, THAT THERE SEEMED TO BE DIFFERENCES OF UNDERSTANDING AMONG THE UNIFORMED SERVICES CONCERNING THE LIABILITY IN CERTAIN CASES FOR REFUND OF UNEARNED REENLISTMENT BONUS UNDER THE PROVISIONS OF 37 U.S.C. 238 AND 239, AND THEREFORE HIS VIEWS WERE SOLICITED IN THE MATTER FOR THE PURPOSE OF CLARIFICATION OF THE REGULATORY REQUIREMENTS TO INSURE THE UNIFORM HANDLING OF SUCH CASES. WE EMPHASIZED THE FACT THAT, IN OUR OPINION, THE MATTER OF RECOUPMENT OF UNEARNED REENLISTMENT BONUS COULD NOT BE BASED SOLELY ON THE NATURE OR TYPE OF DISCHARGE ISSUED UPON SEPARATION FROM ACTIVE SERVICE WITHOUT REGARD TO THE ACTUAL FACTS AND CIRCUMSTANCES ATTENDING THE INDIVIDUAL'S EARLY RELEASE FROM THE TERM OF ENLISTMENT IN WHICH THEN SERVING.

ALSO, WE EXPRESSED THE VIEW THAT, IRRESPECTIVE OF THE TYPE OF DISCHARGE ORIGINALLY ISSUED OR LATER GRANTED BY A DISCHARGE REVIEW BOARD, RECOUPMENT OF UNEARNED REENLISTMENT BONUS IS REQUIRED IF THE SEPARATION IS IN FACT VOLUNTARY OR DUE TO THE MEMBER'S OWN MISCONDUCT. WE FURTHER STATED THAT IN THE ABSENCE OF A SHOWING OR MISCONDUCT OR EVIDENCE CLEARLY ESTABLISHING A VOLUNTARY SEPARATION, PARTICULARLY IN A CASE WHERE IT APPEARS THAT THE DISCHARGE OR RELEASE HAS BEEN INVITED OR OFFERED, OR WHERE IT IS MORE IN THE INTEREST OF THE GOVERNMENT THAN THE MEMBER, THE RIGHT OF THE GOVERNMENT TO RECOVER THE UNEARNED PORTION OF THE REENLISTMENT BONUS WOULD APPEAR QUESTIONABLE AND TOO DOUBTFUL TO JUSTIFIED COLLECTION ACTION BY THIS OFFICE.

IT IS STATED IN THE LETTER OF NOVEMBER 7, 1960, THAT DEPARTMENT OF DEFENSE DIRECTIVE 1304.4 AS REVISED APRIL 14, 1960,"WILL TEND TO ACHIEVE UNIFORMITY IN THE PROCESSING OF FUTURE CASES IN THE MILITARY DEPARTMENTS.' THE PRECEDING DEPARTMENT OF DEFENSE DIRECTIVE 1304.4, DATED DECEMBER 6, 1954, SEEMED TO ALLOW RECOUPMENT OF UNEARNED REENLISTMENT BONUS IN UNSUITABILITY TYPE DISCHARGE CASES AS DEFINED IN PARAGRAPH VII-G, 1 AND 2 OF DEPARTMENT OF DEFENSE DIRECTIVE 1332.14, JANUARY 14, 1959, RELATING TO EARLY DISCHARGES BASED ON INAPTITUDE, INABILITY TO LEARN AND CHARACTER AND BEHAVIOR DISORDERS AFFECTING INTELLIGENCE AND PERSONALITY. RECOUPMENT IN SUCH CASES IS NOT REQUIRED UNDER THE PROVISIONS OF DEPARTMENT OF DEFENSE DIRECTIVE 1304.4, REVISED APRIL 14, 1960.

HOWEVER, RECOUPMENT ACTION IN PARAGRAPH VII-G CASES (THROUGH DEDUCTIONS ON MILITARY PAY RECORDS AT A TIME OF DISCHARGE) WAS NOT SUSPENDED BY THE AIR FORCE UNTIL MAY 2, 1960, AND IN THE LETTER OF NOVEMBER 7, 1960, IT IS STATED THAT THE AIR FORCE HAS APPROXIMATELY 400 SUCH CASES. WE HAVE BEEN INFORMALLY ADVISED THAT THIS IS A TYPOGRAPHICAL ERROR AND THAT THERE ARE MORE THAN 4,000 SUCH CASES. AS TO THIS GROUP OF CASES, IT IS FURTHER STATED THAT THE ADMINISTRATIVE ACTION REQUIRED TO INVESTIGATE THE FACTS AND MAKE A PROPER DETERMINATION IN EACH INDIVIDUAL CASE WOULD BE SO TIME CONSUMING AND COSTLY AS TO OUTWEIGH ANY OVER-ALL FINANCIAL BENEFITS THE GOVERNMENT COULD REASONABLE EXPECT TO REAP UNDER A FIXED POLICY OF ATTEMPTING TO RECOUP THE UNEARNED PORTIONS OF THE REENLISTMENT BONUSES IN QUESTION. ON THE OTHER HAND, IT IS STATED THAT THE ARMY IS OF THE VIEW THAT THE PROVISIONS OF DEPARTMENT OF DEFENSE DIRECTIVE 1304.4, AS REVISED APRIL 14, 1960, ARE FOR APPLICATION IN CONNECTION WITH ALL SEPARATIONS FOR "UNSUITABILITY" OCCURRING SUBSEQUENT TO APRIL 13, 1960.

THERE HAVE BEEN SUBMITTED THE FOLLOWING THREE QUESTIONS:

A. SHOULD RECOUPMENT ACTION BE CONTINUED FOR UNEARNED REENLISTMENT BONUS REMAINING UNCOLLECTED ON A MEMBER'S FINAL PAY RECORD ON DISCHARGE UNDER DEPARTMENT OF DEFENSE DIRECTIVE 1304.4 DATED APRIL 14, 1960 MADE PRIOR TO THAT DATE?

B. IF THE ANSWER TO (A) ABOVE IS NEGATIVE, MAY A PAYMENT BE MADE OF THE AMOUNT OF UNEARNED REENLISTMENT BONUS WITHHELD FROM FINAL PAY IF A CLAIM IS RECEIVED?

C. IF ANSWER TO (B) ABOVE IS AFFIRMATIVE, MAY A REFUND BE MADE WHEN NO CLAIM IS RECEIVED, BASED ON AN UNDERPAYMENT OF FINAL PAY?

IT IS ASSUMED THAT THE THREE QUESTIONS SET FORTH ABOVE HAVE REFERENCE SOLELY TO THE MORE THAN 4,000 CASES IN WHICH THE AIR FORCE SUSPENDED COLLECTION ACTION ON MAY 2, 1960. ON THAT ASSUMPTION TOGETHER WITH THE CIRCUMSTANCES SET FORTH IN THE LETTER OF NOVEMBER 7, 1960, AND SINCE WE FEEL, GENERALLY, THAT RECOUPMENT ACTION IN ANY UNSUITABILITY DISCHARGE CASE COMING WITH THE SCOPE OF PARAGRAPH VII-G OF DEPARTMENT OF DEFENSE DIRECTIVE 1332.14 DATED JANUARY 14, 1959, WOULD APPEAR TOO DOUBTFUL TO WARRANT FURTHER COLLECTION ACTION BY THIS OFFICE, NO FURTHER COLLECTION ACTION NEED BY PURSUED BY THE AIR FORCE WITH RESPECT TO THE MORE THAN 4,000 CASES ABOVE MENTIONED. QUESTION A IS ANSWERED ACCORDINGLY, AND QUESTIONS B AND C ARE ANSWERED IN THE AFFIRMATIVE.

QUESTION D REQUESTS OUR VIEWS ON THE DISCUSSION CONTAINED IN THE LETTER OF NOVEMBER 7, 1960, PERTAINING TO CHANGES MADE IN THE CHARACTER OR TYPE OF DISCHARGE BY DISCHARGE REVIEW BOARDS ESTABLISHED UNDER AUTHORITY OF 10 U.S.C. 1553. THIS PHASE OF THE PROBLEM CONCERNING THE PROPRIETY OF RECOUPMENT OF UNEARNED REENLISTMENT BONUS ARISES IN A SITUATION WHERE THE INDIVIDUAL CONCERNED IS SEPARATED FROM THE MILITARY SERVICE WITH AN UNDESIRABLE DISCHARGE FOR REASONS OF MISCONDUCT AND THE UNDESIRABLE DISCHARGE IS LATER CHANGED TO A GENERAL OR AN HONORABLE DISCHARGE BY A DISCHARGE REVIEW BOARD.

WE EXPRESSED THE VIEW IN OUR LETTER OF DECEMBER 17, 1959, THAT IN SUCH A BASE THE CHANGE FROM AN UNDESIRABLE TO A GENERAL OR AN HONORABLE DISCHARGE, ALTHOUGH RELIEVING THE FORMER MEMBER FROM THE DISABILITIES ATTACHING TO AN UNDESIRABLE DISCHARGE, LEAVES UNCHANGED THE PERTINENT AND BASIC FACTS, NAMELY, THAT THE SEPARATION FROM THE SERVICE ACTUALLY WAS THE RESULT OF MISCONDUCT AND, CONSEQUENTLY, THAT RECOUPMENT OF THE UNEARNED PORTION OF THE REENLISTMENT BONUS IS REQUIRED UNDER THE EXPRESS TERMS OF THE APPLICABLE PROVISIONS OF LAW. IT IS OUR VIEW THAT THE RIGHT TO RETAIN OR THE LIABILITY TO REFUND UNEARNED REENLISTMENT BONUS IS GOVERNED PRIMARILY BY THE REASON CAUSING THE EARLY RELEASE FROM THE TERM OF ENLISTMENT AND IS NOT DEPENDENT, IN ANY MANNER OR TO ANY EXTENT, UPON THE TYPE OR CHARACTER OF DISCHARGE CERTIFIED ISSUED EITHER AT THE TIME OF SEPARATION OR AS SUBSEQUENTLY CHANGED PURSUANT TO THE APPROVED FINDINGS OF A DISCHARGE REVIEW BOARD. CONSEQUENTLY, WE REAFFIRMED THE VIEW EXPRESSED IN OUR LETTER OF DECEMBER 17, 1959, THAT WHETHER THE SEPARATION OF MEMBER OF THE UNIFORMED SERVICES IS TO BE CONSIDERED AS WITHIN THE SCOPE AND PURVIEW OF THE RECOUPMENT PROVISIONS OF LAW MUST BE DECIDED FROM THE FACTS AND CIRCUMSTANCES SURROUNDING EACH CASE AND CANNOT BE DETERMINED SOLELY FROM THE TYPE OR NATURE OF DISCHARGE CERTIFICATE ISSUED.

IN DECISION OF NOVEMBER 15, 1960, 40 COMP. GEN. 280, COPY HEREWITH, TO LIEUTENANT COLONEL R. H. MACPHERSON, FINANCE AND ACCOUNTING OFFICER, UNITED STATES ARMY, IT WAS CONCLUDED THAT RECOUPMENT OF UNEARNED REENLISTMENT BONUS WAS REQUIRED IN A CASE WHERE THE CORRECTION OF A MILITARY RECORD BASED ON THE APPROVED RECOMMENDATIONS OF A CORRECTION OF RECORD BOARD (ESTABLISHED PURSUANT TO 10 U.S.C. 1552) CHANGED THE TYPE OF DISCHARGE FROM A BAD CONDUCT DISCHARGE TO A CERTIFICATE OF GENERAL DISCHARGE, BUT DID NOT ALTER OR CHANGE THE BASIC FACTS OF RECORD SHOWING THAT THE SEPARATION FROM SERVICE ACTUALLY RESULTED FROM THE INDIVIDUAL'S OWN MISCONDUCT. WE POINTED OUT IN REFERENCE TO A CORRECTION OF RECORDS THAT---

* * * A MERE CHANGE IN THE TYPE OF DISCHARGE GRANTED WITHOUT A CORRESPONDING CORRECTION IN THE INDIVIDUAL'S BASIC MILITARY RECORDS ALTERING THE REASON FOR SEPARATION FROM THE SERVICE WHEN SUCH SEPARATION WAS, IN FACT, THE RESULT OF THE PERSON'S OWN MISCONDUCT WOULD NOT GIVE RISE TO ANY RIGHT TO RETAIN THE REENLISTMENT BONUS.

THE FUNCTIONS, DUTIES AND THE SCOPE OF THE JURISDICTION OF DISCHARGE REVIEW BOARDS ESTABLISHED PURSUANT TO 10 U.S.C. 1553 ARE FULLY SET FORTH IN THE LETTER OF NOVEMBER 7, 1960. IT IS POINTED OUT THAT THE SCOPE OF THE BOARD'S INQUIRY IS TO DETERMINE WHETHER THE FORMER MEMBER'S MILITARY RECORD WARRANTS A HIGHER TYPE OF DISCHARGE, WHETHER THE REASON GIVEN IN THE DISCHARGE CERTIFICATE BY REFERENCE TO AN AIR FORCE REGULATION IS PROPER, EQUITABLY, IN THE LIGHT OF THE FACTS DISCLOSED BY THE RECODE AND TO MAKE A FINDING IN A PROPER CASE THAT THE FORMER MEMBER WAS NOT PROPERLY DISCHARGED AND THAT SUCH DISCHARGE SHOULD HAVE BEEN ACCOMPLISHED UNDER SOME OTHER SPECIFIED AIR FORCE REGULATION. IT IS FURTHER POINTED OUT THAT A DISCHARGE REVIEW BOARD DOES NOT MAKE SPECIFIC FINDINGS AS TO WHETHER THE INDIVIDUAL CONCERNED DID NOT COMPLETE HIS TERM OF ENLISTMENT ,VOLUNTARILY" OR "BECAUSE OF HIS OWN MISCONDUCT" FOR THE SPECIFIC PURPOSE OF DETERMINING WHETHER RECOUPMENT OF THE UNEARNED PORTION OF REENLISTMENT BONUS IS REQUIRED AND THAT IT IS BELIEVED "THAT THE BOARD SHOULD NOT BE REQUIRED TO MAKE SPECIFIC FINDINGS FOR THIS SPECIFIC PURPOSE. INSTEAD, IT IS BELIEVED THAT THE FINDINGS NECESSARY TO MAKE A DETERMINATION WHETHER THE REENLISTMENT BONUS MUST BE REFUNDED ARE IMPLICIT IN THE APPROVED FINDINGS AND CONCLUSIONS OF THE BOARD IN ANY PARTICULAR CASE.' ALSO, IT IS INDICATED THAT, WHEN A FORMER MEMBER RECEIVES A NEW DISCHARGE CERTIFICATE BASED ON THE APPROVED FINDINGS AND CONCLUSIONS OF THE DISCHARGE REVIEW BOARD, THE RIGHTS OF SUCH FORMER MEMBER "SHOULD BE DETERMINED ON THE BASIS OF THE NEW DISCHARGE CERTIFICATE WITHOUT REFERENCE TO THE PRIOR ONE WHICH HE HAD RECEIVED AND WHICH HAS BEEN DETERMINED TO BE IMPROPERLY GIVEN.'

TWO SPECIFIC EXAMPLES ARE SET FORTH IN ILLUSTRATION OF THE FOREGOING CONTENTIONS. THE FIRST EXAMPLE IS THAT OF A MEMBER OF THE AIR FORCE WHO HAS BEEN DISCHARGED WITH AN UNDESIRABLE DISCHARGE CERTIFICATE BY REASON OF UNFITNESS AS PROVIDED IN AIR FORCE REGULATION 39-17. THE DISCHARGE REVIEW BOARD FINDS THAT THIS AIRMAN WAS NOT PROPERLY DISCHARGED AND CONCLUDES THAT HE SHOULD RECEIVE AN HONORABLE DISCHARGE UNDER THE PROVISIONS OF AIR FORCE REGULATION 39-14, GOVERNING SEPARATIONS FROM THE AIR FORCE FOR THE CONVENIENCE OF THE GOVERNMENT. AS TO THIS MEMBER IT IS STATED THAT " IT IS BELIEVED THAT THESE FINDINGS AND CONCLUSIONS SHOULD BE CONSTRUED, FOR PURPOSES OF THE REENLISTMENT BONUS STATUTE, AS CONTAINING AN IMPLICIT FINDING THAT THE FACTS DISCLOSED BY THE RECORD BEFORE THE BOARD DID NOT WARRANT DISCHARGING THE FORMER AIRMAN BY REASON OF UNFITNESS.' IN THIS CONNECTION, IT IS FURTHER EXPLAINED THAT, SINCE AIR FORCE REGULATION 39 17 AUTHORIZES THE ISSUANCE OF AN HONORABLE, A GENERAL OR AN UNDESIRABLE DISCHARGE TO MEMBERS WHO ARE DISCHARGED PURSUANT TO THAT REGULATION, IT THE BOARD HAD FOUND THAT THE FACTS DISCLOSED BY THE RECORD WARRANTED DISCHARGING THE FORMER AIRMAN BY REASON OF UNFITNESS, THE BOARD'S DETERMINATION IN THE CASE WOULD HAVE BEEN THAT THE FORMER AIRMAN "SHOULD RECEIVE AN HONORABLE DISCHARGE U/P AFR 39-17.'

A SIMILAR SITUATION IS PRESENTED IN THE SECOND EXAMPLE WHERE THE DISCHARGE REVIEW BOARD CONCLUDES THAT THE FORMER AIRMAN WAS NOT PROPERLY DISCHARGED BY REASON OF UNFITNESS UNDER AIR FORCE REGULATION NO. 39-17 AND CONCLUDES THAT HE SHOULD "RECEIVE A GENERAL DISCHARGE U/P AFR 39/16.' IS STATED THAT---

AS IN THE PRIOR CASE, IT WOULD APPEAR THAT THIS FINDING SHOULD BE CONSTRUED FOR PURPOSES OF THE REENLISTMENT BONUS STATUTES AS CONTAINING A SUBSIDIARY FINDING THAT THE FACTS DISCLOSED BY THE RECORD BEFORE THE DISCHARGE REVIEW BOARD DID NOT WARRANT DISCHARGING THE FORMER AIRMAN BY REASON OF UNFITNESS. INSTEAD, THE FACTS DISCLOSED BY THAT RECORD WARRANTED DISCHARGING IN, INVOLUNTARILY, BY REASON OF UNSUITABILITY UNDERAFR 39-16.

IN SUPPORT OF THE ABOVE CONCLUSIONS, IT IS STATED THAT---

IT APPEARS FROM DEPARTMENT OF DEFENSE DIRECTIVE 1304.4 THAT THE POSITION OF THE OFFICE OF THE SECRETARY OF DEFENSE IS THAT RECOUPMENT OF REENLISTMENT BONUS IS NOT REQUIRED IF AN AIRMAN IS DISCHARGED BY REASONS OF UNSUITABILITY, AS THAT TERM IS DESCRIBED IN DEPARTMENT OF DEFENSE DIRECTIVE 1332.14.

WE ARE AWARE OF THE ADMINISTRATIVE PROBLEMS FACING THE DEPARTMENT OF DEFENSE AND THE UNIFORMED SERVICES IN ANY ENDEAVOR TO SIMPLIFY THE BASIS ON WHICH PROPER DETERMINATIONS CAN BE MADE WITH RESPECT TO RECOUPMENT OR RETENTION OF UNEARNED REENLISTMENT BONUSES. HOWEVER, AS WE SEE THE MATTER, THE WEAKNESS OF THE CONCLUSIONS REACHED IN THE TWO EXAMPLES SHOWN ABOVE IS THAT THE ULTIMATE DETERMINATION OF LIABILITY TO REFUND OR ENTITLEMENT TO RETAIN UNEARNED REENLISTMENT BONUS IS MADE TO REST ENTIRELY ON AN AIR FORCE (OR ARMY) REGULATION WHICH MERELY DENOTES THE TYPE AND CHARACTER OF DISCHARGE WHICH THE DISCHARGE REVIEW BOARD DETERMINES, UPON REVIEW OF THE FACTS, SHOULD HAVE BEEN GRANTED INITIALLY UPON SEPARATION. WE FIND NO REASON TO DISAGREE WITH SUCH A METHOD IN ANY CASE WHERE THE NEW DISCHARGE REVIEW BOARD CLEARLY ESTABLISHES THAT THE TERM OF ENLISTMENT IN WHICH SERVING WAS NOT TERMINATED VOLUNTARILY OR AS THE RESULT OF THE MEMBER'S OWN MISCONDUCT PRIOR TO EXPIRATION OF THE TERM OF ENLISTMENT. THE FIRST EXAMPLE SHOWN, IT IS STATED THAT THE MEMBER SHOULD HAVE RECEIVED AN HONORABLE DISCHARGE UNDER THE PROVISIONS OF AIR FORCE REGULATION 39- 14. AIR FORCE REGULATION 39-14 RELATES TO SEPARATIONS OF ENLISTED PERSONNEL FOR THE CONVENIENCE OF THE GOVERNMENT, AND PARAGRAPH 2 THEREOF IN PERTINENT PART ALLOWS AN AIRMAN TO APPLY FOR SEPARATION "FOR A REASON NOT ELSEWHERE SPECIFIED IN THIS OR OTHER REGULATIONS.' THERE ARE LISTED IN PARAGRAPH 3 SEVERAL REASONS AUTHORIZING SEPARATION FOR THE CONVENIENCE OF THE GOVERNMENT. AMONG THOSE REASONS ARE THE FOLLOWING: TO ACCEPT AN APPOINTMENT AS AN OFFICER OR WARRANT OFFICER IN ANY OF THE ARMED FORCES OF THE UNITED STATES, TO PERMIT IMMEDIATE REENLISTMENT IN CERTAIN SPECIFIED CASES, TO SEPARATE AN AIRMAN WITH INSUFFICIENT SERVICE RETAINABILITY FOR A PERMANENT CHANGE OF STATION, TO SEPARATE AN AIRMAN ELIMINATED FROM AVIATION CADET TRAINING WHO ENLISTED SPECIFICALLY FOR SUCH TRAINING, TO OCCUPY A CRITICAL POSITION IN AN OUTSIDE (CIVILIAN) ACTIVITY, TO ACCEPT PUBLIC OFFICE, TO ATTEND AN ACCREDITED MEDICAL OR DENTAL SCHOOL OR FULL- TIME COLLEGE AND TO STUDY FOR THE MINISTRY. WHILE ALL SUCH SEPARATIONS ARE CLASSIFIED, GENERALLY, IN AFR 39-14 AS FOR THE CONVENIENCE OF THE GOVERNMENT, WE WOULD BE INCLINED TO ADOPT THE VIEW THAT, FOR THE PURPOSES OF THE REENLISTMENT BONUS STATUTES, A SEPARATION TO OCCUPY CRITICAL POSITION IN AN OUTSIDE (CIVILIAN) ACTIVITY, TO ACCEPT PUBLIC OFFICER OR TO ATTEND COLLEGE WOULD CONSTITUTE A "VOLUNTARY" TERMINATION OF THE ENLISTMENT PERIOD IN WHICH SERVING THEREBY REQUIRING RECOUPMENT OF ANY UNEARNED REENLISTMENT BONUS IN SUCH A CASE. ON THE OTHER HAND, A SEPARATION FOR THE PURPOSE OF RELEASING AN AIRMAN WITH INSUFFICIENT SERVICE RETAINABILITY FOR A PERMANENT CHANGE OF STATION, A SEPARATION OF AN AIRMAN ELIMINATED FROM AVIATION CADET TRAINING WHO ENLISTED SPECIFICALLY FOR SUCH TRAINING, OR A SEPARATION OF AN AIRMAN ELIMINATED FROM OFFICER CANDIDATE SCHOOL OR OFFICE TRAINING SCHOOL WOULD, PERHAPS, BE MORE NEARLY AKIN TO AN "INVOLUNTARY" SEPARATION THUS REQUIRING NO RECOUPMENT OF UNEARNED REENLISTMENT BONUS.

SOMEWHAT SIMILAR OBJECTIONS ARE PERCEIVED WITH RESPECT TO THE SECOND EXAMPLE. UNSUITABILITY DISCHARGES ISSUED UNDER AUTHORITY OF AIR FORCE REGULATION 39-16 (IN THE ABSENCE, IN ANY PARTICULAR CASE, OF A SPECIFIC DETERMINATION THAT THE SEPARATION WAS IN FACT NOT DUE TO THE INDIVIDUAL'S OWN MISCONDUCT) COULD BE THE RESULT OF THE INDIVIDUAL'S OWN MISCONDUCT AND THEREFORE WITHIN THE SCOPE OF THE RECOUPMENT PROVISIONS OF LAW.

IN REPLY TO QUESTION D, THEREFORE, IT MAY BE STATED THAT THE MERE REFERENCE IN THE FINDINGS OF A DISCHARGE REVIEW BOARD (10 U.S.C. 1553) OR BY A CORRECTION OF RECORDS BOARD (10 U.S.C. 1552) TO A PARTICULAR AIR FORCE (OR ARMY) REGULATION AS CONSTITUTING THE BASIS ON WHICH THE FORMER MEMBER SHOULD HAVE BEEN SEPARATED FROM ACTIVE SERVICE (WHERE THE PARTICULAR REGULATION TO WHICH SPECIFIC REFERENCE IS MADE DOES NOT EXCLUSIVELY PERTAIN TO INVOLUNTARY AND NONMISCONDUCT SEPARATIONS) MAY NOT BE VIEWED AS EFFECTIVELY RELIEVING SUCH FORMER MEMBERS OF LIABILITY TO REFUND UNEARNED REENLISTMENT BONUSES IF THE ACTUAL FACTS OF RECORD, REMAINING UNCHANGED, CLEARLY ESTABLISH THAT THE EARLY SEPARATION WAS IN FACT VOLUNTARY OR THE RESULT OF THE MEMBER'S OWN MISCONDUCT.